Thread by @AnthonyMKreis

NEW from me in the @ajc: Judge McAfee 𝘥𝘰𝘦𝘴 𝘯𝘰𝘵 have the power to disqualify @FaniforDA or the @FultonCountyDA from the 2020 election interference prosecutions under the Georgia Constitution without evidence of an actual conflict of interest. #gapol ajc.com/opinion/case-a…

A few brief highlights of my argument. The standard for prosecutorial disqualification is an 𝘢𝘤𝘵𝘶𝘢𝘭 𝘤𝘰𝘯𝘧𝘭𝘪𝘤𝘵 not the 𝘢𝘱𝘱𝘦𝘢𝘳𝘢𝘯𝘤𝘦 of a conflict or an appearance of impropriety. Judge McAfee on February 15th suggested that the standard could be either.

Judge McBurney indicated this could be the standard when he disqualified the Fulton County DA's Office from investigating Burt Jones' role in the 2020 election aftermath while the Special Purpose Grand Jury was empaneled. Here is Judge McBurney's footnote. fultonclerk.org/DocumentCenter…

The question of prosecutorial disqualification is a matter of Georgia law. The appellate courts have not always spoken with a clear unified voice on the question of what the standard is.

Generally, they use an actual conflict. 𝘚𝘦𝘦 Ventura v. State, 346 Ga. App. 309 (2018), citing Whitworth v. State, 275 Ga. App. 790 (2005) ("such a conflict of interest requires more than a theoretical or speculative conflict. An actual conflict of interest must be involved.").

Sometimes the appellate courts have thrown in "appearance of impropriety" language in the mix. Greater Ga. Amusements, LLC v. State, 728 S.E.2d 744, 747 (Ga. Ct. App. 2012) ("district attorney may not be compensated [in ways that have at least the appearance of a conflict...").

The Georgia Constitution though and Georgia statutory history give us important context and guidance and should limit the standard Judge McAfee can use to the much higher bar: an actual conflict of interest. Under this standard, the motion to disqualify should be dismissed.

The Georgia Constitution establishes district attorneys as constitutional officers. The power to prosecute flows from the people of each judicial circuit through the district attorney's office. And the Georgia Constitution imposes an unqualified duty on district attorneys:

DA's must represent their constituents in 𝘢𝘭𝘭 criminal cases in superior court. Of course, there are limitations to that to the extent that defendants' due process rights cannot be trumped by the Georgia Constitution's otherwise unqualified mandate on the district attorney.

But the District Attorney is a constitutional officer; they can't be disqualified without a demonstrable conflict that prejudices parties. I discuss in the op-ed the kinds of things are obvious conflicts of interest that would mandate disqualification by any reasonable measure.

The Supreme Court of Georgia in 2014 in 𝘔𝘤𝘓𝘢𝘶𝘨𝘩𝘭𝘪𝘯 𝘷. 𝘗𝘢𝘺𝘯𝘦 explained the DA has a very important place in our state constitutional structure. This is also why if a DA has a conflict of interest, the entire office is disqualified. They aren't just any prosecutor.

"There is no law which authorizes any other person to act in his place in the superior court, except where he is 'absent or indisposed, or disqualified from interest or relationship,' and then the authority to act must come from the judge...." Butts v. State, 90 Ga. 450 (1892).

That is a case from the Supreme Court of Georgia explaining the relationship between district attorneys (then called solicitors general) and the standard for disqualification. There must be a ~conflict from interest or relationship.~

Where does this standard come from?

It was first codified in Georgia statutory law in 1860 and remains the language in O.C.G.A. § 15-18-5. Compare!

The long-and-the short of it (I explain in detail in the op-ed) is this standard is a codification of the common law standard for disqualification for judges that required an actual conflict of interest-- a showing that a judge would profit or had a close connection with a party.

Today, judges are disqualified under an easier showing of bias because they are supposed to be impartial adjudicators. But prosecutors-- and especially Georgia DAs-- are different. The statutory standard for them is buried but it has not changed since it was codified in 1860.

Between the Georgia Constitution and the common law roots for disqualification in the OCGA, I argue that Judge McAfee cannot simply believe Fani Willis and the DA's Office is dirtied up enough to undermine a perception of fairness, thus warranting disqualification.

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